Can the giving of legal advice by an adjudged bankrupt, whose practising certificate has been suspended, amount to practising law in contravention of the Legal Profession Act 1976?

DARSHAN SINGH KHAIRA v. ZULKEFLI HASHIM [2020] 1 LNS 260

• Zulkefli Bin Hashim (“Zulkefli”) was convicted in a traffic case by the Magistrates’ court.

• His appeal to the High Court was dismissed while his appeal to the Court of Appeal was struck out for failure to first obtain leave to appeal.

• Zulkefli had represented himself in all the proceedings from the Magistrates’ Court to the Court of Appeal. However, Zulkefli had engaged Darshan Singh Khaira (“Darshan”) to give him legal advice and to help in the preparation of documentation for his case from the Magistrates’ Court to the Court of Appeal.

• Zulkefli had filed a letter of complaint to the Disciplinary Committee against Darshan on grounds that Darshan had purportedly not properly advised him on the appeal to the Court of Appeal and failed to prepare further documents to reinstate Zulkefli’s appeal at the Court of Appeal.

• Zulkefli later learned of Darshan’s bankruptcy when he went to the Penang Bar Committee office.

• The High Court judge held that when Darshan was adjudged a bankrupt on 22 August 2007, his practicing certificate was automatically suspended and he cannot practice without the consent of the Bar Council.

• Therefore, based on the evidence before the Disciplinary Committee and the admission of Darshan himself that he had advised Zulkefli on the appeal process when he did not hold a valid practising certificate, Darshan had acted against the LPA.

• Darshan alleged that his giving of legal advice cannot be considered as “practising law”. He alleged that he was entitled to assist Zulkefli, who was the litigant in person, by giving advice and assisting him to prepare documents.

• The Court of Appeal agreed with the High Court and found that Darshan, as he had admitted, had charged fees as payment for the drafting of the written submission in the Magistrates’ Court, while there was a separate receipt for outstanding fees for the High Court matter.

• This showed that Darshan was giving legal advice for reward and this can be said to “lie at or near the very centre of the practice of law”, amounting to practising law.

• Although the giving of advice would not tantamount to practising law, the giving of legal advice for fees or reward can definitely bring about that conclusion.